TORONTO – Today, in a landmark decision – Ontario (Health) v Association of Ontario Midwives – the Court of Appeal for Ontario confirmed the Human Rights Tribunal of Ontario’s decision that Ontario midwives experienced gender-based discrimination and should be compensated equitably to eliminate the gender wage gap.
The Ontario Human Rights Commission (OHRC) intervened in the Court of Appeal case to defend midwives’ right to pay equity and address systemic discrimination.
The Court of Appeal’s decision affirms that many factors can contribute to systemic discrimination including simply doing things “the way they have always been done” without considering the impact on certain groups. The midwives decision is an important precedent for ensuring equitable treatment of women and other Code-protected groups in the workforce.
Historically, midwifery has been characterized as “women’s work”, and undervalued. On average women earn less than men. In its 2018 decision, the HRTO found that Ontario midwives had experienced systemic gender discrimination in compensation from 2005 to 2013. In 2019, the HRTO ordered the government to take steps to end midwives’ gender wage gap resulting from this discrimination. The government challenged the HRTO decision first to the Ontario Divisional Court and then the Court of Appeal.
The OHRC argued that assessing systemic discrimination requires a flexible and contextual analysis consistent with the Supreme Court of Canada decision in Fraser v Canada (Attorney General). The Court of Appeal agreed that it is important to understand how systemic discrimination occurs and examine all factors at play.
The OHRC’s mandate includes working to eliminate systemic gender discrimination in Ontario. The midwives decision, affirmed by Ontario’s highest court, confirms that unconscious attitudes about the value of work traditionally done by women are hidden and embedded in seemingly neutral compensation policies and practices. Failing to take reasonable steps to proactively monitor, understand and evaluate concerns of discrimination can be a factor supporting a systemic discrimination claim.
“This decision recognizes the need to look at the systemic nature and cumulative effects of policies and conduct on disadvantaged groups,” said OHRC Chief Commissioner Patricia DeGuire. “Duty-holders should proactively monitor for and prevent systemic discrimination which includes ensuring pay equity.”
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Ontario Human Rights Commission
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